Peeking through the Blindfold: Judicial Off-Bench Response to Affective Polarization in Fragmented Constitutional Courts

Abstract

Literature generally advances that preserving constitutional courts’ institutional trust is in the self-interest of justices, who mobilize their networks and adopt institution-preserving off-bench behavior vis-à-vis illiberal actors. In Brazil, however, the use of self-oriented off-bench rhetoric to safeguard individual external reputations regardless of the collegiate stands out. After analyzing two typical cases through process-tracing, this paper unveils the mechanisms leading from heightened audience pressure to self-oriented off-bench behavior, highlighting the inability of fragmented constitutional courts to filter its justices’ individual strategies within a context of affective polarization and judicialization of politics. Against this backdrop, the constant public involvement of justices in political discourse might compromise the court’s perceived impartiality, thereby exacerbating the erosion of judicial legitimacy and fueling cycles of negative reciprocity within society.